Saturday, October 06, 2018

The Nomination of Brett Kavanaugh to the Supreme Court

The Nomination of Brett Kavanaugh to the Supreme Court

In spite of the fact that Kavanaugh has shown himself to be remarkably unsuited for a life-time position on the Supreme Court, the push to have him confirmed by the right-wing conservative Republican Party will most likely succeed. This should be of no great surprise when considering the history of the Supreme Court in the United States.

The supposed role of the Court as established in the U.S. constitution (Article III) is to ensure that the constitution is upheld and, thereby, serve as a balance to both the executive and legislative branches.

The following is the full text of Article III as it appears in the constitution –


Article III


The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.


The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.


Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Note: Section II as shown above was subsequently modified by the 11th amendment – “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

In fact, many of the major decisions made by Court before the modern post-World War II era have sided with and protected the interests of the powerful – the ruling class - and the status quo. For example, two of those major decisions that have had far reaching implications in the nation’s history are shown below.

Dred Scott v. Sandford (1857), was a landmark decision by the United States Supreme Court that sanctioned the right of slave owners to take their slave to the Western territories.

Plessy v. Ferguson, (1896), was a decision of the U.S. Supreme Court that had far-reaching implications for the country. It validated the constitutionality of racial segregation laws for public facilities – Jim Crow - as long as the segregated facilities were supposedly equivalent - a doctrine that came to be known as "separate but equal." In fact, this proviso. was never adhered to.

In contrast, the Warren Court (1953-1969) made decisions that protected and affirmed the civil rights of the individual as well as the accused. Some of these are listed below.

Brown v. Board of Education of Topeka (1954), was a profoundly important Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional.

Miranda v. Arizona, (1966), was a landmark decision of the United States Supreme Court. In a 5–4 majority, the Court held that any self-incriminating statements made by a defendant in a criminal case in response to police interrogation would only be admissible in a court of law provided that the prosecuting attorney could show that the suspect was told of his right to an attorney and his protection from self-incrimination prior to the questioning. This decision gave rise to the required reading of the so-called “Miranda rights” to a criminal suspect upon arrest. ...

Roe vs Wade - Roe v. Wade (1973), was a decision that struck down the constitutionality of laws that criminalized or restricted access to abortions.

This period of so-called liberal decisions made by the Supreme Court was short lived as the right-wing gained prominence in American politics. This is exemplified in the Supreme Court’s recent decisions in regards to:

· Gun Control - affirming gun ownership as a constitutional right as specified by the Second Amendment - McDonald v. Chicago (2010). This particular interpretation of the Second Amendment – “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” - has been seriously questioned.
· Campaign Finance - eliminating federally-mandated restrictions on campaign contributions equating campaign contributions with the protection provided by freedom of speech guaranteed in the constitution - Citizens United v. Federal Election Commission (2010). In effect, this decision insures that the powerful monied interests have unfettered access to legislators and ultimately to the crafting of legislation through the influence of lobbyists working on their behalf.
· The Voting Rights Act of 1965 – voiding that portion of the Voting Rights Act of 1965 that required states with a proven history of voting rights abuses to provide evidence that no inequitable obstacles were created to restrict voting among minority populations - Shelby County v. Holder (2013). This decision gave license to states with a history of voting-rights abuses to impose a broad range of voter qualification requirements that were previously restricted in the Voting Rights Act.

The political leanings of the current Supreme Court especially within the environment of a right-wing government is in keeping with the traditional role of the Supreme Court as the guardian of the rights and protector of the privileged position of the powerful in American politics, government and civic life. I would argue that this is yet another symptom of the apparently inexorable decline of liberal democracy in the United States. Without the guaranteed protection of the basic rights of such a vibrant and diverse people that live in this immense country, the future remains in question. Under the aegis of those who hold immense power, daily life for ordinary citizens would become increasingly oppressive with ever-narrowing opportunity.

Apparently, it has become quite acceptable for a substantial portion of the American citizens to accept and embrace the leadership of a president who is a known liar with absolutely no respect for the truth, a supporter of white supremacy, a misogynist and who is busily deconstructing vital protections in regard to the natural environment in a time of growing concerns about climate change. In addition, he seems particularly drawn to dictators. Although his “reign” will end, a precedent has been set in regards to the quality of leadership we can expect in the future.

All of this does not bode well for the coming generations; unless, the next generation wakes up from its seeming torpor and becomes actively engaged in politics and community. It will be in their hands.

No comments: